Felony disenfranchisement – the exclusion of individuals convicted of felonies from the voting rolls – is a practice that is commonplace in the United States. In 2010, approximately 5.3 million Americans were ineligible to vote because of a prior felony conviction. Despite the fact that the justifications for disenfranchisement in a democratic society could be characterized as dubious, disenfranchisement has withstood various legal challenges and remains a widespread practice in almost every state. One argument which has never been examined empirically is the notion that disenfranchisement hampers efforts to rehabilitate offenders, which is what this article does. First, this article explores the history and philosophy that underlies disenfranchisement along with theoretical mechanisms by which disenfranchisement can be thought to have an impact on recidivism. Second, the legal challenges that have been made against disenfranchisement are discussed with a particular focus on challenges under the Equal Protection Clause of the Fourteenth Amendment as well as the Voting Rights Act. A novel constitutional argument under principles of congruence and proportionality is also examined. Third, this article uses re-arrest data collected by the United States Department of Justice to examine the impact of felony disenfranchisement on recidivism. These results are discussed along with implications for future inquiries.

This piece introduces Prosecution and Racial Justice, a panel discussion with Wayne McKenzie of the Vera Institute for Justice, by outlining the legal-historical context for reform strategies that detect and correct effects of racial bias in prosecutorial decision-making.

The Supreme Court constantly is changing what previously had been relatively settled understandings of what the law requires. Whenever that happens, the question arises: What to do about cases that courts have already resolved using subsequently changed legal principles? In a previous article, I identified and criticized a previously underappreciated method for limiting the disruptive effects of legal change: a “forfeiture” approach that subjects criminal defendants who failed to anticipate new rulings to a narrow form of appellate review that virtually guarantees they will lose. This Essay expands the analysis in light of the Supreme Court’s recent decision in Davis v. United States, which suggests a different, “remedy-limiting” approach. Although representing a substantial improvement over the flawed forfeiture approach, a remedy-limiting approach remains inferior to a return to a more straightforward “non-retroactivity” analysis as a way of grappling with the important and unique problems posed by legal change.

This essay considers how the Supreme Court's recent limits on remedies for Fourth Amendment violations threatens the future development of Fourth Amendment law. It focuses on two decisions from the October 2010 Supreme Court Term: Camreta v. Greene, 131 S. Ct. 2020 (2011), and Davis v. United States, 131 S.Ct. 2419 (2011). Both Camreta and Davis reflect an optimistic view that Fourth Amendment remedies can be limited without substantially inhibiting the proper development of the law. The essay suggest that development of Fourth Amendment law requires more robust remedies to create cases and controversies and provide incentives to litigate claims. It concludes by considering how the Supreme Court might best foster law-development in a regime of limited Fourth Amendment remedies.

A recent study of death penalty cases has revealed that judges, who are ordinarily thought of as the guardians of criminal defendants’ constitutional rights, are more likely to impose harsher punishments than jurors. This may be unsettling in its own right, but it is especially concerning because judges are the individuals charged with determining whether punishments are unconstitutionally cruel and unusual under the Eighth Amendment, and these determinations are supposed to be based on “the evolving standards of decency that mark the progress of a maturing society.” The study suggests that judges are out of step with society’s moral norms, raising the question of why judges, rather than juries, are entrusted with resolving constitutional questions of cruel and unusual punishments. This Article argues that juries are better equipped to make these determinations and that charging juries to employ their own moral values to decide these matters is consistent with the underlying purpose and history of the ratification of the Eighth Amendment. This shift in power would also be in line with the Supreme Court’s recent elevation of the jury in criminal cases such as Apprendi v. New Jersey and United States v. Booker.

This article from today's San Diego Union-Tribune chronicles the adventures of a local man who walked into a 7-11 in a Gumby costume on Labor Day and claimed to be committing a robbery. The print version reports that the suspect had posted on his facebook page on Aug. 15 a mention of his new Gumby costume and how he had worn it everywhere. And fortunately, the print version suggests in the headline that, as the suspect is claiming he was only playing a prank, Gumby may avoid the Pokey.

The NESS (necessary element of a sufficient set) account of natural (scientific, ‘actual’, ‘factual’) causation is usually acknowledged to be a more satisfactory and comprehensive account than the traditional sine qua non (‘but for’) account. However, objections have been raised to the claim that the NESS account fully captures the concept of natural causation and properly handles all types of situations. Various types of counter-examples have been proposed. More fundamentally, it is argued that the NESS account is viciously circular, since causal terminology often is used in its elaboration and it relies upon the concept of causal laws.

This Essay, written for the 12th Annual Access to Equal Justice Colloquium, introduces the concept of needs-based delinquency, a theory that challenges basic presuppositions about the method by which the United States juvenile justice system determines whether a child is delinquent. It argues that at each stage of the process - from intake through adjudication to disposition and probation - the court gives as much or more weight to the perceived "needs" of the child and her family than to the quality of the evidence against her or the ability of the state to prove its case. Typical features of the juvenile code, including the procedures for intake and diversion and the use of bench rather than jury trials, combine to shift the system's emphasis from an evaluation of a child's criminal responsibility to an assessment of a family's social service needs. The standard of proof, therefore, is determined in large part by the socioeconomic class of the accused rather than the nature of the forum, an orientation that lowers the standard for indigent juveniles while heightening it for affluent youth. The result is that children from low-income homes do not have to be as "guilty" as those from families of means in order to be adjudicated delinquent, thereby widening the net of court intervention for poor children.

The entry into force of the Lisbon Treaty has changed the framework and possibilities of the development of European Union (EU) criminal law. Gone is the long-lived and awkward cross-pillar character of EU criminal law, as mainly a third pillar EU ‘intergovernmental’ issue but also partly a first (EC) pillar question. The Lisbon Treaty marks a new era for the criminal law as it brings it within the core of the EU law project. Nevertheless, Article 10 of the transitional protocol as attached to the Lisbon Treaty stipulates a five-year transition period before former third pillar instruments will be treated in the same way as EU acts. This paper will focus on two issues in particular. The first question that will be addressed concerns what EU law principles drive or decide the EU’s involvement in criminal law. After having identified these principles the second question is whether they should drive it and if so what implications will it have for the criminal law in the future.

Academics and practitioners sit worlds apart, despite daily engagement with the same issues. This article seeks to engage both communities in meaningful legal discourse by putting forward as a basis for argument a counter-factual variation of the fact patterns from recently decided United States case law. Illustrated by this hypothetical scenario is an inherently unfair legal arrangement whereby the Executive assumes virtually unlimited power and attempts to deny, entirely, the non-citizen detained abroad any voice. This article argues that the extension of habeas protection to those detained outside the United States will bring equilibrium to the separation of powers so that the global community may begin to cure the continued injustice for those detained by Executive Order.

Remorse and apologies by offenders have not been rigorously analyzed in the law and economics literature. This is perhaps because apologies are regarded as 'cheap talk' and are deemed to be non-informative of an individual's conscious state. In this paper, I develop a formal framework in which one can analyze remorse and apologies. I argue that legal procedures can be designed to price apologies, such that only truly remorseful individuals apologize. Hence, apologies would not be mere 'cheap talk' and could send correct signals regarding an offender's true conscious state, making them credible. This will lead victims, upon receiving apologies, to forgive offenders more frequently. Moreover, pricing apologies does not negatively impact the possibility of achieving optimal deterrence. An (arguably negative) effect of pricing apologies is its elimination of insincere apologies. If it is assumed that apologies, even if insincere, carry rehabilitative and/or palliative benefits, than the optimality of pricing apologies depends on a trade-off between achieving credibility and increasing such rehabilitative and palliative benefits.

This Article starts by analyzing the conventional wisdom, crystallized in the Ninth Circuit’s 1983 decision in Gonzales v. City of Peoria, that state and local law enforcement officers do not require express federal authorization to make arrests for criminal violations of federal immigration law. This view, I explain, is based on overreliance on the line between civil and criminal. Even if a state or local arrest for an immigration crime still leaves federal prosecutors with substantial discretion not to bring criminal charges, it is highly likely that the federal government will force arrestees to leave the United States through the civil removal system, where much less discretion has been exercised. In immigration law, the discretion to arrest has been the discretion that matters. As long as this remains true, state and local arrest authority for immigration crimes reflects assumptions that have the potential to supersede much federal control over immigration enforcement. This consequence of state and local arrests assumes great practical importance when the lessons from Gonzales are applied to federal programs – such as § 287(g) agreements and Secure Communities – in which state and local nonimmigration arrests expose noncitizens to federal immigration enforcement. Though federal decisionmakers may exercise greater and more regularized discretion in response to a larger state and local role, such federal discretion will be fundamentally reactive. Any federal policy that allows state and local governments to be gatekeepers – to permit state and local priorities to decide which noncitizens will be exposed to federal immigration enforcement – risks abdication of federal authority over immigration.

Cameron Todd Willingham was tried and executed for the arson deaths of his three little girls. The expert testimony offered against him to establish arson was junk science. The case has since become infamous, the subject of an award-winning New Yorker article, numerous newspaper accounts, and several television shows. It also became enmeshed in the death penalty debate and the reelection of Texas Governor Rick Perry, who refused to grant a stay of execution after a noted arson expert submitted a report debunking the “science” offered at Willingham’s trial. The governor has since attempted to derail an investigation by the Texas Forensic Science Commission into the arson evidence presented at Willingham’s trial.